Citation Nr: 0026510
Decision Date: 10/04/00 Archive Date: 10/10/00
DOCKET NO. 99-00 941 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to specially adapted housing assistance or a
special home adaptation grant.
2. Entitlement to an automobile or other conveyance and
necessary adaptive equipment.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Douglas E. Massey, Associate Counsel
INTRODUCTION
The veteran had active service from July 1956 to February
1960 and from September 1962 to August 1979. His claims come
before the Board of Veterans' Appeals (Board) on appeal from
rating decisions by the Department of Veterans Affairs (VA)
Regional Office (RO) in Waco, Texas, which denied the
benefits sought on appeal.
REMAND
The veteran has filed claims of entitlement to specially
adapted housing assistance or a special home adaptation grant
and entitlement to an automobile or other conveyance and
necessary adaptive equipment based on the loss of use of both
lower extremities. Before adjudicating these claims,
however, the Board finds that additional medical development
is required.
The veteran may be awarded a certificate of eligibility for
assistance in acquiring specially adapted housing if, among
other things, he is entitled to service-connected
compensation for permanent and total disability due to: (1)
the loss, or loss of use, of both lower extremities such as
to preclude locomotion without the aid of braces, crutches,
canes, or a wheelchair; or (2) blindness in both eyes, having
only light perception, plus the anatomical loss, or loss of
use, of one lower extremity; or (3) the loss, or loss of use,
of one lower extremity together with residuals of organic
disease or injury which so affect the functions of balance or
propulsion as to preclude locomotion without the aid of
braces, crutches, canes, or a wheelchair; or (4) the loss, or
loss of use, of one lower extremity together with the loss or
loss of use of one upper extremity which so affect the
functions of balance or propulsion as to preclude locomotion
without the aid of braces, crutches, canes, or a wheelchair.
38 U.S.C.A. § 2101(a)(1)(2)(3) (West 1991); 38 C.F.R. §
3.809(b)(1)(2)(3)(4) (1999).
In addition, a certificate of eligibility for financial
assistance in the purchase of one automobile or other
conveyance will be provided if his service-connected
disability includes loss or permanent loss of use of one or
both feet or hands. For adaptive equipment eligibility only,
ankylosis of one or both knees or one or both hips due to
service-connected disability is sufficient for entitlement to
financial assistance. 38 U.S.C.A. §§ 3901, 3902 (West 1991);
38 C.F.R. § 3.808 (1999). Adaptive equipment which is
necessary to insure that the eligible person will be able to
operate the automobile or other conveyance in a manner
consistent with such person's safety shall be provided. 38
U.S.C.A. § 3902(b)(1). The term adaptive equipment includes
that special equipment necessary to assist the eligible
person to get into and out of the vehicle. 38 U.S.C.A. §
3901.
The term "loss of use" of a hand or foot is defined by 38
C.F.R. § 3.350(a)(2) as that condition where no effective
function remains other than that which would be equally well
served by an amputation stump at the site of election below
elbow or knee with use of a suitable prosthetic appliance.
The determination will be made on the basis of the actual
remaining function, whether the acts of grasping,
manipulation, etc. in the case of the hand, or balance,
propulsion, etc., in the case of a foot, could be
accomplished equally well by an amputation stump with
prosthesis. Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63
which constitute loss of use of a foot or hand are extremely
unfavorable ankylosis of the knee, or complete ankylosis of
two major joints of an extremity, or shortening of the lower
extremity of 3 1/2 inches or more. Also considered as loss
of use of a foot under 38 C.F.R. §
3.350(a)(2) is complete paralysis of the external popliteal
(common peroneal) nerve and consequent foot drop, accompanied
by characteristic organic changes, including trophic and
circulatory disturbances and other concomitants confirmatory
of complete paralysis of this nerve. Under 38 C.F.R. §
4.124a, Diagnostic Code 8521 (1999), complete paralysis also
encompasses foot drop and slight droop of the first phalanges
of all toes, an inability to dorsiflex the foot, loss of
extension (dorsiflexion) of the proximal phalanges of the
toes, loss of abduction of the foot, weakened adduction of
the foot, and anesthesia covering the entire dorsum of the
foot and toes.
In this case, service connection has been established for
hypertensive heart disease with congestive heart failure and
pedal edema, rated as 100 percent disabling, peripheral
vascular disease of the right and left lower extremities with
postoperative varicose veins, rated as 60 percent disabling
for each extremity, post-traumatic stress disorder, rated as
50 percent disabling, chronic liver disease, rated as 30
percent disabling, and hearing loss of the left ear, rated as
noncompensably (zero percent) disabling. The record is
unclear as to whether the veteran currently experiences loss
of use of one or both lower extremities or feet as a result
of these disabilities as defined in 38 C.F.R. §§ 3.808,
3.809, 3.350(a)(2). For example, a July 1998 VA examination
report noted that the veteran was wheelchair bound and unable
to stand on his own. It was later noted, however, that he
was able to walk 10 to 20 feet. At a VA neurological
examination in August 1998, the veteran reported trouble
walking because of lack of sensation in both legs. VA
examinations performed in 1999 also report inconsistent
findings. An August 1999 VA arteries/veins examination
report noted that both legs were numb and painful while
walking, thereby requiring the use of a wheelchair most of
the time. At a VA heart examination, however, the examiner
indicated that the veteran was unable to walk because of
arterial and venous insufficiency.
In light of these findings, the veteran should be afforded
cardiology and neurological examinations which should include
medical opinions as to whether any of the veteran's service-
connected disabilities meets the regulatory criteria set
forth in 38 C.F.R. §§ 3.808, 3.809, 3.350(a)(2). See 38
U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999)
(VA's duty to assist includes the duty to obtain VA
examinations which provide an adequate basis upon which to
determine entitlement to the benefit sought); see also
Littke v. Derwinski, 1 Vet. App. 90 (1991), Johnson v. Brown,
9 Vet. App. 7 (1996) (examinations must address the rating
criteria in relation to the veteran's symptoms).
Accordingly, the case is REMANDED for the following action:
1. The RO should schedule the veteran
for cardiology and neurological
examinations to determine the current
severity of his service-connected
hypertensive heart disease with
congestive heart failure and pedal edema,
as well as his peripheral vascular
disease of the right and left lower
extremities with postoperative varicose
veins. All clinical findings should be
reported in detail and the requested
findings, as set forth below, should be
reported separately for each lower
extremity. The examiners should review
the claims folder and a copy of this
remand before examining the veteran.
With respect to the veteran's lower
extremities, the examiners should
indicate:
(a) whether there is loss, or loss of
use, of both lower extremities such as to
preclude locomotion without the aid of
braces, crutches, canes, or a wheelchair;
(b) whether there is loss, or loss of
use, of one lower extremity together with
residuals of organic disease or injury
which so affect the functions of balance
or propulsion as to preclude locomotion
without the aid of braces, crutches,
canes, or a wheelchair;
(c) whether the remaining function of
either foot and/or leg, in terms of
balance, propulsion, etc., could be
accomplished equally well by an
amputation stump with a prosthesis;
(d) whether there is extremely
unfavorable complete ankylosis of either
knee, or complete ankylosis of two major
joints of a lower extremity, or
shortening of either lower extremity of 3
1/2 inches (8.9 centimeters) or more;
(e) whether there is complete paralysis
of the external popliteal nerve (common
peroneal) of either leg with consequent
foot drop, organic changes, or other
concomitants confirmatory of complete
paralysis of the nerve; and
(f) whether there is ankylosis of one or
both of the veteran's knees or one or
both hips.
The examiners must be reminded that only
the veteran's service-connected
disabilities may be considered in
rendering an opinion. A complete
rationale for each opinion should be
provided.
2. The RO must then review the
examination reports to ensure that they
are in complete compliance with the
directives of this REMAND, and, if not,
the RO should implement corrective
procedures.
3. The RO should then readjudicate the
issues of entitlement to specially
adapted housing assistance or a special
home adaptation grant and entitlement to
an automobile or other conveyance and
necessary adaptive equipment based on the
loss of use of both lower extremities.
Each decision should be made in light of
all pertinent evidence and all applicable
laws, regulations, and case law.
4. If any determination made remains
unfavorable, the veteran and his
representative should be furnished a
supplemental statement of the case and be
given the opportunity to respond thereto.
Thereafter, subject to current appellate
procedures, the case should be returned
to the Board for further appellate
consideration.
The purpose of this REMAND is to obtain additional
development. The Board does not intimate any opinion as to
the merits of the case, either favorable or unfavorable, at
this time. No action is required of the appellant until he
is notified. The appellant has the right to submit
additional evidence and argument on all matters the Board has
remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369
(1999).
WARREN W. RICE, JR.
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).